United States v. Kent

February 7, 2007

UNITED STATES OF AMERICAv.JEROME KENT

The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

MEMORANDUM AND ORDER

Before the court is Defendant Jerome Kent's Motion for Relief From Judgment Pursuant to Rule 60(b)(6)*fn1 of the Federal Rules of Civil Procedure. Defendant alleges that this court's order of July 10, 2001, violated his Sixth Amendment rights when this court determined drug amounts and that he was in possession of a weapon. He claims that in accordance with the recent case of Cunningham v. California, 2007 U.S. LEXIS 1324, 75 USLW 4078 (Jan. 2007), those factors must be decided by a jury or admitted to by him.

California has a determinate sentencing law that allocated to judges the sole authority to find facts permitting the imposition of an upper term sentence. Cunningham held that placing sentence-elevating factfinding within the judge's province violates a defendant's right to trial by jury. Cunningham, however, re-affirmed Apprendi v. New Jersey, 350 U.S. 466, 490 (2000), which held that, under the Sixth Amendment, any fact (other than a prior conviction), that exposes a defendant to a sentence in excess of the relevant statutory maximum must be found by a jury. Defendant's statutory sentence was a minimum of twenty years and a maximum of life. He was sentenced to a term of 324 months -- within the statutory penalty. The Cunningham case has no impact on Defendant's sentence.

IT IS THEREFORE ORDERED THAT:

1) The motion for relief from judgment (doc. 449) is DENIED.

2) Any appeal from this order will be deemed frivolous.

3) The Clerk of Court shall close ...

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